All posts by Paul J. McAndrew, Jr.

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WILG Turns 20! Worker’s Injury Law And Advocacy Group 20th Anniversary

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

I joined WILG in its 1995 inaugural year. At those early conferences, my colleagues around the nation were battling workers’ comp “deform,” and engaged in political battles in their respective states, lobbying legislators on behalf of injured workers’ rights.

I thought I was relatively insulated in Wisconsin, the national “model” state for workers’ comp, with an Advisory Council composed of management and labor which each biennium produced an “agreed-upon” bill that was accepted by the legislature.

The Republican ascendancy in Wisconsin (Scott Walker as Governor, and both Assembly and Senate controlled by Republicans) has decided to ignore 100 years of progressive legislation and ignore the Advisory Council’s recommendations. This dangerous precedent will make workers’ comp more politicized, and threaten the stability of Wisconsin’s workers’ comp system. Wisconsin, like other states, will be part of a “race to the bottom” in workers’ rights and benefits.

WILG’s current President, Matt Belcher of Illinois, provided this summary of the state of workers’ comp as WILG celebrates its 20th anniversary:

”We have never been better positioned as a national organization to advocate on behalf of the families of injured workers.

Recent success in reviewing courts have highlighted nationally the unconstitutional danger posed to the community when injured workers lose access to effective legal representation, have capricious benefit limits imposed upon them, or are disabled due to unfair medical treatment bureaucracies.

WILG and its members have been at the fore of litigation battles where catastrophically injured workers have lost their savings, been forced onto welfare rolls and into Social Security Disability plans while simultaneously being denied access to the civil courthouse and the free exercise of their 7th amendment right to a jury trial. See Wade v. Scott Recycling (Virginia); Malcomson v. Liberty Northwest (Montana); Pilkington & Lee v. State of Oklahoma (Oklahoma); Padgett v. State of Florida (reversed on procedural grounds), Westphal v. City of St. Petersburg, and Castellanos v. Next Door Company (Florida).

The United States Department of Labor in coordination with OSHA have finally “discovered” that employee misclassification and wage theft are rampant, and that the cost-shifting externalization of care for injured workers is as poisonous as it is pervasive.

Perhaps most fundamentally, ProPublica, bolstered by the imprimatur and audience of NPR, has created a national conversation and awareness of the oppressed plight of injured workers with its feature The Demolition of Workers’ Compensation which exposed to the public domain the travesty and arbitrary injustice we slog through on a daily basis.

If we are uncritical we shall always find what we want. -Karl Popper

Continual, constructive self-assessment of our organizational efforts is indispensable to the accomplishment of our mission. Are we really doing the best job possible and are we succeeding to our complete potential?

Governors in the traditionally blue states of California and New York have signed away the long term financial security of millions of families of injured workers while Texas and Oklahoma have essentially jettisoned workers’ compensation benefits, allowing indifferent employers to Bail-Out of their responsibility to provide for the safety and security of working families. Further corporate front group Bail-Out initiatives are fermenting in the legislatures of Arkansas, Kansas, North Carolina, South Carolina, Tennessee and Wyoming.

In my view, the state workers’ compensation system is in its most dire situation in at least the last half-century. -Prof John F. Burton, Jr.

Professor Burton is clearly referencing only the perspective of the injured worker and not the immense wealth of the $85 billion insurance industry where insurance carriers now earn $6.20 in profits for every $100 of net premiums; and, private employers on average pay only 44 cents per hour for each employee to be provided with coverage.

Empirical evidence reliably demonstrates that each reduction in benefits to an injured workers’ family subsequent to “reform” has not translated into lower premiums for small business but primarily in greater profit for the self-insureds and the insurance industry. From 2007 to 2012, workers’ compensation benefits and costs per $100 of payroll were lower than at any time over the last three decades, while insurance company investment profits in 2011, 2012, and preliminarily for 2013, have topped 14% annually.

According to OSHA, workers’ compensation benefits now cover only 21% of workers’ compensation liabilities–shifting 79% of the true cost to others, including the injured workers’ family and taxpayers–while our firsthand knowledge demonstrates the inadequacy of current benefit levels and the injustice of the AMA Guides, ODG Treatment Guidelines, Primary Cause, Medical Formularies and the literal evaporation of effective vocational rehabilitation for those injured workers who have lost access to their prior occupation.

Therefore, my beloved brethren, be ye steadfast, unmovable, always abounding in the work of the Lord, for ye know that your labor is not in vain in the Lord. -1 Corinthians 15:58

I believe it will be the exponential participation of you, the existing member, which fosters our mission as much as the sheer addition of new members. The existential purpose of the organization must always be vigorous and exigent advocacy, not just growth and the collection plate. We must collect accomplishments, not only numbers.

Together we can do that, but we must have an active outreach program that communicates to the public, to the media and to state legislators the value of workers’ compensation and the cost of its failure. If business can focus-group a new Doritos flavor, I am confident we can use a similar approach identifying crux “reptile” talking points, plus distilling and building upon the points raised in the ProPublica series to focus our messaging.”

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Texas Trench Collapse Results in $400k OSHA Fine and 16 Safety Violations

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

On July 22, 2015, Hassell Construction Co. was cited by OSHA for 16 safety violations (including 6 egregious willful violations) and given a whopping $423,900 fine. Hassell Construction Co. is a construction company based in Richmond, Texas with about 150 employees that construct water and sewer lines around Houston, Texas. The employer was given 15 business days to comply with each citation, request an informal conference with OSHA’s Houston South area director, or contest the citations and penalties before the OSHA Health Review Commission.

These citations were given after a trench that was 8 feet below the ground collapsed in February crushing an unsuspecting employee. Luckily, the worker was dug out by his co-workers using their bare hands. The minute the worker was freed from the trench, the trench collapsed a second time.

According to OSHA’s regional administrator in Dallas, John Hermanson, “Hassell Construction knew its trenches weren’t safe, but still put its workers in harm’s way.” Due to the fact that trench cave-ins such as the one in February are completely preventable OSHA has also placed the construction company in the Severe Violator Enforcement Program which often inspects employers and mandates follow-up inspections to ensure that they are complying with the law. In North Carolina, a similar incident allowed the employee to sue the employer directly and overcome the exclusivity provision of the North Carolina Workers’ Compensation Act. Woodson v. Rowland. 373 S.E.2d 674 (1988).

Read about the citations here: https://www.osha.gov/ooc/citations/HassellConstruction_1031127_0722_15.pdf

Original Article 7/22/15 posted on WorkersCompensation.com.

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How the Supreme Court Decision on Same-sex Marriage Applies in the Workplace, Part 2: Family and Medical Leave Act

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Another consequence of the decision legalizing same-sex marriage is that same-sex spouses are eligible for FMLA leave to take care of a spouse with a serious health condition. This raises some difficult practical questions, such as how FMLA leave works for same-sex couples that include: 

Can an employer ask for a marriage certificate when an employee asks for leave to take care of a same-sex spouse? 

The answer to this question is probably yes. The U.S. Department of Labor states that an employer can ask for a verification of marriage so long as they don’t discriminate in the requirement. An employee with a newly legally recognized same-sex marriage may feel inconvenienced that they have to prove their marital status to get FMLA leave. They might also feel they are being discriminated against because heterosexual individuals aren’t asked to provide a marriage certificate when they take FMLA leave to take care of their spouse. However, if an employer requires heterosexual couples to verify marriage through a producing a marriage certificate for insurance purposes, it could make sense that a heterosexual person is not asked to produce a marriage certificate to take family leave, if they have already done so for insurance purposes. 

Taking family leave can be stressful, and I am sure there are some human-resources officials who hold anti-LGBT attitudes. But even if an employer doesn’t request a marriage certificate for heterosexual couples to verify FMLA leave, employees should assume that the request is made in good faith. Courts favor individuals who comply with the requests of their employers, even if those requests aren’t made within the letter of the law. 

In states where marriage was same sex marriage was legalized by Obergefell, when do FMLA protections start?

In states like Nebraska, where the Obergefell decision legalized same-sex marriage, an interesting question is whether an employer is required to retroactively count family leave as FMLA if the leave started before the marriage was formally legalized in that state but the individual’s same-sex marriage was recognized in another state. This is a pertinent issue in Nebraska, since many same sex-couples were married in nearby Iowa, which has recognized same-sex marriage since 2009. The U.S. Department of Labor would likely argue that if you married your same-sex partner in Iowa that you would have had FMLA protections in Nebraska to take care of your spouse even if Nebraska didn’t recognized same marriage until June 26, 2015. But courts may not give much weight to the opinion of the U.S. Department of Labor. This issue is a legal toss-up. The best thing that same-sex couples can do to protect their rights to FMLA leave is to not give their employer any valid excuses for terminating them for taking FMLA leave. 

Please click here to read part one of this series. Feel free to contact our office if you have questions about the issues raised in these two posts.

Biocontainment Planner / Expert

Today’s post was shared by The Green Workplace and comes from www.appone.com

Description

Prominently ranked on numerous industry “best of” lists, EYP Architecture & Engineering is a national, award-winning architectural and engineering firm with a strong commitment to design excellence. Our portfolio includes new construction, renovation and historic preservation projects for college and university and government clients. EYP is currently seeking a Lab Planning Expert to support our growing firm. The position will be responsible for focusing EYP’s intellectual capital in the area of lab planning and gaining recognition for the firm’s expertise in this area among clients and peers. Essential duties would include:

  • Provide consultative services to project teams in area of biocontainment planning and design, including containment for animal facilities.
  • Work directly with clients to develop biocontainment requirements, room data sheets, systems requirements, and scientific equipment schedules
  • Direct experience with USDA, NIH, CDC, and other relevant regulations and guidelines including BSL 1-3+, CL-1-3 is required, BSL -3Ag/4, CL-4 experience optional.
  • Experience with SOP, protocol, and biosafety controls and procedures
  • Working knowledge of relevant biosafety systems, equipment, procedures, and protocols
  • Working knowledge of sterilization, decontamination, and waste handling systems
  • Conduct learning sessions for EYP staff to broaden staff knowledge in area of lab planning
  • Speak or participate in professional conferences…

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What can we do about shift work?

Today’s post was shared by Jon L Gelman and comes from strongerunions.org

SHIFTWORK

There has been a lot of research published in the past few years around the effect of shift work and our health since the World Health Organisation classified night shift work as a probable carcinogen back in 2007. In 2012 research for the HSE estimated that the additional breast cancer risk associated with night shift working would have translated into about 2,000 extra cases of breast cancer (out of a total of about 43,200 in Britain) in 2004. That would mean around 550 additional deaths and makes it the biggest occupational killer after asbestos. A study in 2013, based on 2,300 women in Vancouver found that women who worked night shifts for 30 years or more were twice as likely to develop breast cancer.

More research was published this week on the link between shift work and cancer. The new one comes from researchers in the Netherlands and Germany and appears to support previous research suggesting a link between night-shift work and breast cancer. Although this research is in mice it is important because it provides the first experimental proof that shift work increases breast cancer development.

However it is not just breast cancer that is more likely to be caused by shift working. Shift work has been shown to lead to heart problems, type2 diabetes and obesity. It is also linked to stomach problems and ulcers, depression, and an increased risk of accidents or injury. We have known about these problems for many years and researchers continue to find links between shift…

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Federal Regulators Link Workers’ Comp Failures To Income Inequality

Today’s post was shared by Gelman on Workplace Injuries and comes from www.npr.org

A few hours after ProPublica and NPR issued the first in a series of reports about workers’ compensation "reforms" sweeping the country, the Occupational Safety and Health Administration coincidentally released a paper linking workplace injuries to income inequality.

The OSHA paper and ProPublica/NPR stories come to similar conclusions about how some injured workers have been affected by a decade of changes in workers’ compensation laws, including cutbacks in benefits and more difficulty in getting benefits.

But OSHA goes on to say that many injured workers and their families find themselves in "a trap which leaves them less able to save for the future or to make the investments in skills and education that provide the opportunity for advancement."

Among the paper’s other major points:

  • On average, injured workers earn $31,000 or 15 percent less in the 10 years following a workplace injury
  • Employers pay only 21 percent of the costs of workplace injuries through workers’ compensation. Families end up bearing 50 percent of the costs and taxpayers pay 16 percent when workers resort to food stamps or Social Security Disability.
  • With employers not bearing the full costs, which OSHA characterizes as a subsidy, the incentive to provide a safe workplace is undermined.
  • Fewer than 40 percent of eligible injured workers apply for workers’ compensation benefits.
  • In California, 1/3 of workers with reported amputations at work did not receive workers’ compensation…

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Workers’ Compensation Basics: What is a Workers’ Compensation Accident?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

This blog post is the third in a series that examines the basics of workers’ compensation.

To be a covered workers’ compensation claim, an employee’s personal injury must be caused by an accident or occupational disease, but what does that mean?

The Nebraska Workers’ Compensation Act defines accident as: “an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There shall be no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment. …” Nebraska Revised Statute 48-151 (2)

Of course, many workers’ compensation injuries are not as simple or as clear as a broken arm that was the result of a fall. Some injuries are caused by repetitive motion or cumulative trauma on the job. In those cases, the injuries are still considered workers’ compensation “accidents” under the definition above, even though the injuries did not truly occur “suddenly and violently” as required by the statute. 

As for an occupational disease, the Workers’ Compensation Act defines it as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and shall exclude all ordinary diseases of life to which the general public is exposed.” Nebraska Revised Statute 48-151 (3) Examples to think about would be mesothelioma for asbestos workers or black lung for coal miners.

In sum, pretty much any injury or illness that an employee receives from work can fit into the definition of “accident” under the Nebraska Workers’ Compensation Act. However, proving the injury is much more difficult and may require the help of a lawyer.

Read the previous blog posts in the series by clicking on these links: Workers’ Compensation Basics: Are You an Employee? and What is Workers’ Compensation?

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Is a Pulmonary Embolism Compensable under Workers’ Compensation?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

The short answer is yes, but it could be difficult to prove if it is not directly related to another workers’ compensation injury. In Nebraska, proving a pulmonary embolism and deep vein thrombosis (DVT) requires the same legal and medical causation tests as a heart attack or stroke (see Zissin v. Shanahan and Wingfield v. Hill Brothers Transportation, Inc.).

What that means is legal causation must be proved by showing that exertion or stress encountered during employment is greater than that experienced during the ordinary non-employment life. Then, it must also be proven by medical causation: i.e., show that the employment contributed in some material and substantial degree.

On the other hand, if someone develops DVT as a result of another injury caused by work, it would probably be much easier to meet the causation required to prove compensability. For example, let’s say a worker injures his knee during work and has surgery on that knee. Then, as a result of the surgery, a postoperative complication of DVT arises and eventually becomes a pulmonary embolism. In that scenario, the pulmonary embolism is clearly related to the work injury and clearly compensable.

Absent a prior injury, however, causation must be met by the standards stated above, which will be very fact intensive. An example of this scenario came up in the recent case, Wingfield v. Hill Brothers Transportation, Inc., 288 Neb. 174. In that case, a truck driver for 35 years asserted that his deep vein thrombosis and pulmonary embolism was from sitting while driving a truck so long. The workers’ compensation court dismissed the cases, holding that the truck driver did not adequately prove legal and medical causation.

This case illustrates how difficult the causation standard is for pulmonary embolism cases that are not directly linked to a work injury. These types of cases will almost certainly require the assistance of a lawyer.